5.  The applicant was born in 1954 and lives in Zagreb.
6.  On 26 February 2008 the Committee on the Constitution, Rules of Procedure and Political System of the Croatian Parliament, (Hrvatski Sabor – Odbor za Ustav, Poslovnik i politički sustav – “the Parliamentary Committee”) published in the Official Gazette (no. 26/2008 of 29 February 2008) a Call for Applications for the Election of Three Judges to the Constitutional Court, inviting prospective candidates to submit their applications.
7.  On 28 April 2008 the applicant, a judge of the Administrative Court, submitted her application for the post of judge of the Constitutional Court. Another eighteen candidates also submitted applications.
8.  The Parliamentary Committee eventually compiled a shortlist of four candidates, namely, Mr M.J., Mrs D.Š., Mrs S.B. and the applicant, and submitted it to Parliament for a vote.
9.  After a secret ballot in which the applicant received four of the required 77 votes, on 9 May 2008 Parliament adopted a decision electing Mr M.J., Mrs D.Š. and Mrs S.B., who each received 78 votes, as judges of the Constitutional Court.
10.  On 26 May 2008 the applicant, relying on section 66 of the Administrative Disputes Act (see paragraph 32 below), lodged a request for the protection of a constitutionally guaranteed right (zahtjev za zaštitu ustavom zajamčenog prava) with the Administrative Court (Upravni sud Republike Hrvatske) contesting Parliament’s decision of 9 May 2008. She argued that S.B. had not proved that she had at least fifteen years of professional experience and thus did not demonstrate that she satisfied all the statutory criteria for election as a Constitutional Court judge set forth in section 5(1) of the Constitutional Court Act (see paragraph 25 below). Therefore, in the applicant’s view, by electing S.B. instead of her, Parliament had breached her right to equality before the law, the right to equality before the State and other public authorities, the right to equal access to public service and the right to equal access to employment guaranteed in Articles 14(2), 26, 44 and 54(2) of the Constitution (see paragraph 23 below), respectively.
11.  On 26 June 2008 the Administrative Court invited M.J. and D.Š. to submit their observations as third (interested) parties (zainteresirane osobe). On 7 and 8 June 2008, respectively, they replied that they considered the applicant’s request unfounded and that the election of the Constitutional Court’s judges had been in accordance with the law. They also stated that they did not consider themselves third (interested) parties to the proceedings because the applicant had not challenged their election.
12.  On 15 October 2008 the Administrative Court delivered a judgment whereby it allowed the applicant’s request and quashed Parliament’s decision of 9 May 2008 in its part concerning S.B. The court held that the applicant was entitled to lodge her request even though that court’s judgment did not alter her legal status as unelected candidate. It also held that from the evidence submitted by S.B. to the Parliamentary Committee it could not be discerned whether she had the required professional experience and that therefore the applicant’s right to equal access to public service and her right to equal access to employment, guaranteed by Articles 44 and 54(2) of the Constitution, had been breached by the contested decision.
13.  On 4 February 2009 S.B. lodged a constitutional complaint with the Constitutional Court (Ustavni sud Republike Hrvatske) against the Administrative Court’s judgment. At the same time she asked the Constitutional Court to order an interim measure that would postpone the effects of the contested judgment until that court had decided on her constitutional complaint. S.B. argued in her constitutional complaint that the impugned judgment of the Administrative Court had breached her right to equality before the law, the right to work and the right to equal access to employment guaranteed in Articles 14(2) and 54(1) and (2) of the Constitution (see paragraph 23 below), respectively. She also argued that the election of the Constitutional Court judges was a political rather than a legal issue. Therefore, Parliament’s decision of 9 May 2008 constituted a so-called act of State (akt vladanja) in respect of which the scope of constitutional review was limited to compliance with procedural rules (that is, to formal constitutionality) and was thus very narrow. In particular, she argued that the Administrative Court had not been authorised to assess whether the evidence she had submitted had been sufficient to prove that she had the required professional experience and to question the Parliamentary Committee’s findings in this respect.
14.  On the same day, the Constitutional Court, sitting in a plenary session composed of ten judges (including judges M.J. and D.Š.), ordered an interim measure postponing the effects of the Administrative Court’s judgment of 15 October 2008. In so doing it held, inter alia, that:
“...the contested judgment [of the Administrative Court] requires detailed examination of the limits and scope of judicial review of decisions on appointment of State officials, ..., and in that sense, has a wider importance that goes beyond the limits of an individual case.”
The decision on the interim measure was published in Official Gazette no. 16/2009 of 5 February 2009 but has never been served on the applicant.
15.  On 13 February 2009 the Constitutional Court served the constitutional complaint together with the request for an interim measure on the applicant.
16.  On 18 February and 3 March 2009 S.B. supplemented her constitutional complaint, alleging a violation of her right to a fair hearing guaranteed by Article 29(1) of the Constitution. On 20 February and 5 March 2006, respectively, the Constitutional Court served the two supplements on the applicant.
17.  On 7 March 2009 the applicant submitted her reply to S.B.’s constitutional complaint and two days later to its supplements of 18 February and 3 March 2009. She argued that because the election of the Constitutional Court judges was regulated by law, it was not a political but primarily a legal issue. Consequently, Parliament’s decision of 9 May 2008 was not an “act of State” and was therefore justiciable, that is, capable of being challenged in legal proceedings. In any event, section 66 of the Administrative Disputes Act entitled the Administrative Court to review any individual decision capable of violating constitutional rights, regardless of its nature or of whether it emanated from the legislative or the executive branch of government. As regards S.B.’s request for an interim measure, the applicant, after having remarked that the Constitutional Court had granted it on the same day the request had been made, argued that under section 67(2) the Constitutional Court Act such a measure could not postpone “the effects of a contested decision” but only its “enforcement” (see paragraph 25 below). Lastly, the applicant asked the Constitutional Court to “hold a public session (hearing)” and invite her to attend it (“održi javnu sjednicu (raspravu) na koju molim da me se pozove”).
18.  During the proceedings, the Constitutional Court requested and obtained observations from the Parliamentary Committee, expert opinions from six law-faculty professors and two former judges of that court as well as opinions and information from the Croatian National Bank, the State Central Office for Administration, the Croatian Bar Association, the Ministry of Justice, the State Bureau of Statistics and a private bank Zagrebačka banka d.d.. The remaining nine law faculty professors from whom the Constitutional Court also requested expert opinions did not submit them. The attempt to obtain information from the Danish Red Cross failed because the NGO in question could not be found at the address indicated in the relevant register.
19.  On 31 March 2009 the applicant wrote to the Constitutional Court asking it to serve her with “the expert opinions requested (from individuals and institutions)”, which she had found out about from the media.
20.  On 30 April 2009 the Constitutional Court, sitting in a plenary formation of ten judges (including judges M.J. and D.Š.), held a session to which the applicant was not invited, and adopted a decision whereby it quashed the Administrative Court’s judgment of 15 October 2008. It held that the election of Constitutional Court judges was a hybrid (political and legal) issue and that, even though Parliament’s decision of 9 May 2008 was “an act of State”, the Administrative Court could have reviewed not only whether the prescribed procedure had been followed but also whether the candidates had satisfied the required statutory conditions. Nevertheless, the Administrative Court had overstepped the bounds of its jurisdiction when it had (re)assessed the evidentiary value of the documents S.B. had furnished as proof that she had possessed the required professional experience. By so doing the Administrative Court had not only encroached on matters within the exclusive jurisdiction of Parliament, but had also breached S.B.’s right to work and her right to equal access to employment guaranteed by Article 54(1) and (2) of the Constitution, as well as her right to equality before the law guaranteed by Article 14(2) of the Constitution.
21.  On the same day, the President of the Constitutional Court and her Deputy held a press conference at which they announced that the Administrative Court’s judgment of 15 October 2008 had been quashed, that S.B. remained a judge of the Constitutional Court and that the case would not be remitted to the Administrative Court in order to “stop this agony”.
22.  On 4 May 2009 the Constitutional Court served its decision, together with the opinions and information obtained during the proceedings, on the applicant. On 5 June 2009 the decision of the Constitutional Court was published in the Official Gazette (no. 65/2009).